Accused in S.T.No.2745/10 on the file of Judicial First Class Magistrate Court, Kolenchery is the revision petitioner herein.
2. The case was taken on file on the basis of a private complaint filed by the first respondent-complainant against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
3. The case of the complainant in the complaint was that the revision petitioner borrowed a sum of Rs.1,00,000/- for his personal purpose and in discharge of his liability, he had issued Ext.P1 Cheque which when presented was dishonoured for the reason 'funds insufficient' evidenced by Ext.P2 dishonour memo and the same was intimated to the complainant by his banker vide Ext.P3 intimation letter. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He did not send any reply nor had he paid the amount. So, he had committed the offence punishable under Section 138 of the Act. Hence the complaint.
4. When the revision petitioner appeared before the court below, the particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P6 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had no transaction with the complainant but, he had borrowed some amount from one Roy and issued two blank signed cheques as a security. Though he paid the amount, it was not returned as there was some dispute regarding interest payable. In order to prove his case, the revision petitioner himself was examined as DW1 and one Roy was examined as DW2.
5. After considering the evidence on record, the court below found that the case of the revision petitioner is not believable and believed the case of the complainant and convicted the revision petitioner for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for one month more. It is further ordered that if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Aggrieved by the same, he filed Crl.Appeal.No.755/12 before the Sessions Court, Ernakulam which was made over to Additional Sessions Court, Muvattupuzha for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and sentence of fine with default sentence and with direction to pay compensation, but, reduced the substantive sentence to imprisonment till rising of court and granted 30 days to pay the amount. Aggrieved by the same, the present revision has been filed.
6. Since first respondent appeared through Counsel in the delay petition and expressed his desire to appear in the revision also, this court felt that the revision can be admitted and disposed of on merit today itself after hearing both sides. So, the revision is admitted and both sides were heard and disposed of today itself.
7. The Counsel for the revision petitioner submitted that the evidence of DWs 1 and 2 will go to show that the case of the revision petitioner is more probable than the case of the complainant and he had discharged his burden. So, court below was not justified in convicting him for the offence alleged.
8. On the other hand, the Counsel appearing for the first respondent submitted that no proper evidence has been adduced and the evidence of DWs 1 and 2 are not sufficient to rebut the presumption.
9. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of Rs.1,00,000/- and in discharge of that liability, he had issued Ext.P1 cheque. But, the case of the revision petitioner was that he had some money transaction with one Roy of Nachira and he had given two blank signed cheques. Though he paid the amount, the cheques were not returned as he wanted more amount by way of interest. In order to prove the case of the complainant, complainant himself was examined as PW1 and he deposed in support of his case in the complaint. Though he was cross examined at length, nothing was brought out to discredit his evidence on this aspect. It is true that the revision petitioner has gone to the witness box and examined himself as DW1 and one Roy was examined as DW2. But, Roy had denied the transaction. Further, in his 313 examination, the case of the revision petitioner was that he borrowed Rs.50,000/- from Roy and issued blank signed cheque. But, at the time of his examination as DW1 and suggestion given to DW2 was that, he borrowed Rs.1,00,000/- and issued the cheque. Further, he had not produced any document to show that he had paid any amount to said Roy and Ext.P1 cheque was given to him. It is true that Ext.D2 was produced to show that the cheque was issued by Centurion Bank whereas it has now merged with HDFC Bank. So, there is no possibility of giving the cheque as claimed by the complainant. But, it may be mentioned here that the cheque when presented was not returned on the ground that the cheque was issued by Centurion Bank and not by HDFC Bank. That shows that even after merger the cheque given by their predecessor bank was being used by the successor bank in connection with their transaction with the customers. He did not send any reply to the notice as well.
So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the case of the revision petitioner is not believable or probable and rightly believed the evidence of PW1 and convicted the revision petitioner for the offence under Section 138 of the Act and the concurrent findings of the court below do not call for any interference.
10. As regards the sentence is concerned, though the trial court had sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for one month and further directed to pay the fine amount to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure, the appellate court had reduced the substantive sentence to imprisonment till rising of court. So, maximum leniency has been shown by the courts below in imposing the sentence which cannot be said to be excessive or harsh and it does not require interference at the hands of this court.
11. When this court was about to dispose of the revision, the Counsel for the revision petitioner prayed six months time for payment of the amount. Considering the amount involved and also the fact that the case is of the year 2010, the period of six months sought by the revision petitioner appears to be on the higher side. But, this court felt that, four months time can be granted to the revision petitioner to pay the amount. So, the revision petitioner is granted time till 26.03.2015 to pay the amount or deposit the amount before the court below. Till then, the execution of sentence is directed to be kept in abeyance. If the amount is paid directly to the complainant and the revision petitioner produces the proof of the same and if that was acknowledged by the complainant before the trial court, then, the magistrate is directed to treat the same as substantial compliance of recovery of the amount and payment of compensation to the complainant as directed by the court below and confirmed by this court and record the same in the respective registers as provided in the decisions reported in Beena Vs. Balakrishnan Nair and Another [2010 (2) KLT 1017] and Sivankutty Vs. John Thomas and Another [2012 (4) KLT 21] and permit the revision petitioner to serve the substantive sentence of imprisonment till rising of court.
With the above direction and observation, the revision petition is dismissed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge